president goh: welcome to the december 14, 2011, meeting of the board of appeals in. the presiding officer this evening is president goh. joining her is vice president garcia and commissioner fung. commissioner peterson has resigned for the board and commissioner hwang is absent for the evening.

when a vacancy exists on the board, the board may overrule the action of the department by a vote of three members. four votes are not required to overrule a departmental action in. that is why we are able to meet with only three members present. if the absence commissioners vote could make a difference, the board will allow the absent commissioner to participate in the vote. we are also joined by deputy city attorney francesca who will provide the board with any needed legal advice. at the controls is the victor. and i am sylvia gold steam. we are joined our representatives who have matters before the board. jarvis murray is here representing the division of taxis. john fong is here representing

the department of mapping. and anthony greco is representing the department of building inspection. at this time, could you please go over the meeting guidelines. >> the board request that you turn off all phones and pagers so they will not disturb the proceedings. please carry on conversations in the hallway. the presentations are as follows -- appellants, permit holders, and the department representatives have seven minutes and three minutes for rebuttal. people affiliated with these parties must include these comments within the seven or three-minute periods. members are not affiliated with the parties have up to three minutes to address the board with no rebuttals. to assist the board and the accurate preparation of minutes, members of the public who wish to speak on an item are asked, but not required, to submit a speaker card when you come up to speak at the podium.

cards and hence are available on the left side of the podium. the board also welcomes your discussion and there are customer satisfaction survey is available. if you have questions regarding the board schedules, please speak to staff after the meeting or call the office tomorrow morning. he office is looking at 1615 mission st. room 304. this meeting is broadcast live on san francisco government television, cable channel 78, and dvd's of this meeting are available for purchase. thank you for your attention. at this point, we will conduct our swearing in process. if you intend to testify at any of tonight's hearings and wish to have the board give your testimony evidenciary wait, please stand, raise your right hand, and say i do after you

have been sworn in. any member of the public may speak without taking this both pursuant to their rights under the sunshine ordinance of the administrative code. thank you. do you solemnly swear and affirm that the testimony you are about to give will be the whole truth and nothing but the truth? thank you. >> 90. president goh and commissioners, we have a one housekeeping item. this is related to appeal no. 5. this matter has been withdrawn and will not be heard this evening. we can move into public comment. is there any member of the public who would like to speak to an item that is not on tonight's calendar? please step forward. >> good evening. ken cleveland and i work for

the building owners and managers association. i am not speaking on any particular item tonight. i want to give a little context to what is called the mobile food facilities ordinance. >> i think that is a subject matter that is being taken up this evening. >> but it is not relevant to any particular appeal tonight. >> when this was good to the other one year ago -- >> i think it makes sense for you to speak during the hearing of the case. hold off and we will hear you then. >> ok. >> i just want to say happy holidays and ♪ and goodlatte board of appeals and all of your city deals in a city -- in a city made of steel, the board of appeals is made of

stone. make that happen in your home make it fast make it last make a good deal you can have it all her and in your city life, make it happen, make your appeals happen make it happen you will make it all your life. what a city feeling keep appealin' make it real and make it happen what a city feeling and good luck appealing ♪ thanks. >> thank you. is there any other member of the public who like to speak? seeing none, we will move to

item two, commissioner comments and questions. >> i do not want to make a big speech. actually, i do. i appreciated serving with commissioner tonya peterson and we will miss her intelligence and kindness and thoughtfulness. she really cared about the law and let the law guide her decision making. i was fortunate enough to work with her on rewriting the rules last year. and serve as vice president when she was president along with director gold seen -- goldstein and the deputy city attorney, we rewrote the rules together and it was a great experience for me. we were successful in our attempts to make them more fair and protect the due process. i just want to say commissioner

peterson will be sorely missed. vice president garcia: i would agree. i will not make a big speech about it because i hope someday she will come back. so that we can properly honor her. anyone who is watching the meetings is properly familiar with the skills she had up here. she could analyze issues that were relatively complex and could concisely state what her points of view were about that. all that is self-evident to what i would want to talk about. i was always impressed that she would come here after a long day at the zoo. she has two children, running a household, taking care of that. she would have to deal with going back and forth across the bridge and a couple of days every week.

she would always show up here totally cheerful and upbeat. it was pretty remarkable. anyone who has not gotten to know her, if you have an opportunity to, you would consider it to be a pleasure. i will definitely miss commissioner peterson. >> i will wait to say it to her personally. >> are there any public comments on the commissioner comments? seeing none, we move to item 3, the adoption of minutes. for your consideration are the discussion and adoption of the minutes for the meeting on december 7, 2011. >> i wanted to add that under item number two, i was speaking about a particular rule, 5.5, and i wanted to add that. >> ok. is there any public comment on

the rules? -- on the minutes, i am sorry? seeing none, is there a motion. >> so moved. >> if you could call the roll, please? commissioner fung: aye. vice president garcia: aye. >> the minutes are adopted. >> i will call item no. 4, appeal number 07-209, gary martinovsky versus the taxi commission, appealing the removal on august 30, 2007 of the appellants name from the public convenience and necessity medallion waiting list. this was on the board called the

chair calendar for the past four years awaiting the outcome of a lawsuit filed against the city in which subject matter was being considered. that litigation is now over and when contacted, the appellant indicated that he wanted to have this matter heard. an october hearing that was elected but after mr. martinovsky failed to submit a brief, the matter was rescheduled to this date. mr. martinovsky indicated he was unhappy with the hearing date but refused to suggest an alternative. during a telephone conversation late last week, he indicated he did not attend to appear today. i am assuming he is not here. with that, i would recommend that we call the department representative to give him an opportunity to speak. president goh: agreed.

>> good evening, commissioners. there is not much for me to say in this matter. we believe mr. martinovsky was properly removed from the wait list. in 2006, he was given notice that he was eligible for a potential medallion. he responded that he had not been driving his vehicle since 2001. as you are well aware, as an applicant for a medallion, you must be able to demonstrate that you follow the full time driver requirements. at the time, his application was two of the last three years of driving before getting a medallion career he responded by saying you had not driven. he was given a time waiver. what that would do it would give you one extra year to give you a chance to improve your driving and allow you to add an additional year of driving. he never responded.

it read -- expired in july of 2007. after that, he was notified that there is a hearing and that he would be removed from the list. if he did not appear. he did not appear and was properly removed from the list carried and we were never able to get to the issue of whether this alleged disability would preclude him to obtaining a medallion. we feel he was properly removed from the waiting list. there are still 2800 names on that list, 16-17 years long. it is time for the next person on the list to move forward. thank you. >> questions, commissioners? thank you. president goh: is there any public comment on this item? seeing none, i do not believe there is a need to call for rebuttal. commissioners, the matter is submitted.

>> i would like to note, for the record, that the department who has jurisdiction over this particular issue, plus our own department, tried to do everything we could to accommodate this gentleman. it did not quite work out. i believe that our efforts are quite clear. vice president garcia: is there a motion? commissioner fung: i would move to uphold. president goh: i would recommend adopting findings at a later hearing given that the appellant is not present.

if you could call the roll. >> the motion was hit from vice president garcia and. -- commissioner fong. pahor -- commissioner fung. to adopt the hearings at a later time and. on that motion to uphold findings at a later time -- vice president garcia: aye. president goh: aye. commissioner fong: aye. president goh: we will move on to item 6 a-i.

i will call those now. the appellants art sheila murphy, umberto gibin, michelle funkhouser, david davari, john isaacs, osman zughayer, muna azzghayer, arsalan najmabadi, howard fish,

carlos aguilar. we will give each of the appellants an opportunity to speak in order of the appeal number. then we will hear from the permit holder and the department and take a couple of comments. we will start with the appellate for appeal #103. vice president garcia: before we begin, you did not say how everyone gets seven minutes. >> the time is at the board's discretion. she has indicated she would allow them 14 minutes for testimony and six minutes of rebuttal. that time could be adjusted as necessary. vice president garcia: if some of kellan before you has stated most of the fact or the

evidence, if you would want us to consider, would you consider not repeating that and not feel compelled to take your entire seven minutes. if it gets too repetitive, we might lose track of the points you're trying to make. thank you. >> good evening. on behalf of the owners and property managers of the location of this. what is particularly striking about this permit is the fact that it is a discretionary permit which is appealable to the board. and yet they fit -- they failed to exercise discretion. that allows the permit holder to fill out the form, pay the fees, and even though a protest hearing was held with all of the objections you're going to hear tonight, the only condition that was on the permit was to allow

them to operate at this location conditionally for six months. if you read the legislation or the guidelines, they allow for the dtw hearing officer to exercise discretion in regards to the process. the issues that stand out are the impact on other food service businesses. the guidelines in the code were very clear that it was not just limited to the kind of designation that dpw adopted in its guidelines. there were other considerations. as we stated in our brief, there are lots and lots of a food- service businesses that have take away food and food that is not necessarily even in a sit- down situation. the economic impact that arise from that are tremendous. there are a limited number of food dollars that will be spent. if they are not going to go to the bricd